Abstract
The past two years have been a remarkable time for the labor movement. Starbucks Workers United began organizing the big-brand coffee retailer in 2021, and now workers at more than 300 stores have voted in favor of union representation. After Amazon workers at a plant in Alabama voted against representation in 2021, an upstart, grassroots labor organization managed to win a decisive victory at the company’s JFK08 facility in Staten Island. Organizing drives at Apple, Chipotle, REI, and Trader Joe’s locations have all secured wins. Labor has also enjoyed successful campaigns within the media, ranging from New York Times information technology employees to editorial staff at Insider, Politico, and Slate. Accompanying these wins are dramatic changes in public opinion toward unions, with some polls registering support greater than 70%.
For those trying to catch up with these dizzying sets of events, a good place to begin is For Labor to Build Upon: Wars, Depression and Pandemic, by William B. Gould IV, Stanford Law professor emeritus and former National Labor Relations Board (NLRB) chairman. The book is in many ways a well-timed prelude to the remarkable spate of organizing that took off beginning in fall 2021. It is perhaps a shame—and somewhat ironic—that the book’s call to organizing came a bit too soon to reflect on the many successes of the past year. But readers looking to understand what preceded this recent period, and why it seems such a reversal from past expectations, will find much to consider in Gould’s latest volume.
The theme that emerges from For Labor to Build Upon is largely one of contingency: Namely, it is separate choices made by labor, employers, and government that have plunged union representation from roughly one-third of the private workforce at mid-century to approximately 6% of that workforce at present. While acknowledging the many ways that the law has been molded to serve employer interests, Gould also places blame on labor leaders such as George Meany and Lane Kirkland for failing to act as the long slide began (e.g., pp. 23–24, 139). Recognizing the complexity of the situation, he writes: “A major part of the problem may be lethargy and lack of initiative on the part of many or most of the unions up against the formidable obstacles of skillful employer antiunion campaigns and consultants and of the law itself; the labor movement may have been induced to throw up its hands in disgust or dismay” (p. 139). Describing law as a “subordinate consideration,” Gould argues that true change will come only after vigorous efforts at organizing and the flexing of union muscles (p. 20).
Within this overall narrative, Gould constructs the book to show how current struggles relate to historical precedents. As an example of the labor movement’s history of racial discrimination, he hearkens back to the dispute between Meany and A. Philip Randolph, a Black labor leader of the Brotherhood of Sleeping Car Porters who fought against segregated union locals (pp. 39-40). Gould presents labor’s reluctance to address discrimination as an internal failing that crippled efforts for broader solidarity. The book also undertakes a deep dive into the relationship between unions and antitrust legislation, noting the success of the Clayton Act and subsequent disappointment of the Supreme Court opinion in Duplex Printing Press Co. v. Deering (pp. 54–57). It also includes an extended analysis as to how the National War Labor Board shaped industrial relations during the two World Wars and beyond, as the Board introduced such concepts as no-strike clauses, union security agreements, grievance-arbitration procedures, and management rights provisions (pp. 70–72). Although these developments secured much of labor’s postwar rise, Gould worries they may also have engendered complacency and diminished power.
After examining episodes from labor history, For Labor to Build Upon pivots to modern concerns. Discussing the dangers of the COVID-19 pandemic, the book notes how no-strike clauses may impede workers’ ability to take precautionary measures (such as the refusal to perform work) when employers fail to protect them (pp. 80–88). Gould also commends the NLRB’s shift to postal representation elections as a fairer and safer approach (pp. 88–92). In addition, the book analyzes recent events regarding the employment status of gig workers and college athletes, arguing that both sets of workers have been exploited and deserve the protection of labor and employment laws (pp. 95–136). These current controversies illustrate the role of law in shaping the debates around these issues, which Gould develops with careful attention to detail.
To return to a world with a significant role for collective representation, Gould has both a big-picture message to labor as well as a set of specific labor law reforms. His exhortation, as noted earlier, is for unions to be much more proactive in recruiting new members and organizing new sets of workers. He is not sanguine about structural reforms, such as sectoral bargaining, fearing that the grafting of these “foreign ideas” would not take (pp. 152–153). In fact, he worries that industry-wide bargaining could be used by employers to “control bargaining and suppress worker interest,” especially in new sectors such as ride-sharing (p. 178). As he succinctly states, “Law cannot create union power” (p. 153). Instead, he suggests a passel of changes ranging in scope and likelihood of adoption: expansion of mandatory subjects of bargaining to include automation and artificial intelligence; elimination of permanent replacements under Mackay Radio; greater restrictions on employer lockouts; a more inclusive test for employee status; the elimination of mitigation for damages and the addition of punitive and compensatory damages; more expeditious NLRB case handling; and arbitration if the parties cannot agree to a first contract (pp. 156–174). Despite his at-times gloomy outlook, Gould believes that collective bargaining remains the best avenue for worker empowerment—“[t]here is simply no other way” (p. 180).
There is evidence suggesting that the surprising organizing successes of the last year have stalled. As of mid-2023, there has yet to be any collective bargaining agreements negotiated at Starbucks, Amazon, or Apple. Despite its avowed purpose of facilitating worker representation and collective negotiation, US labor law still allows far too many opportunities for employers to deflect, delay, harass, or threaten their way out of any ongoing labor relationship. William Gould’s For Labor to Build Upon provides a timely and provocative reminder of labor’s past history, current predicament, and uncertain future. Now that some unions, at least, have taken up his charge to organize, organize, organize, we will soon discover whether such efforts will lead to a breakthrough of the current labor torpor. We could instead land back where we have been for so long, with the added despair of dashed hopes.